On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L- 190-00.
Before Judges Skillman, Carchman and Wells.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2001
This appeal involves the interpretation of N.J.S.A. 40:55D- 52(d), which entitles a developer to a mandatory extension of the two-year period of exemption from a change in the zoning of its property conferred by final subdivision approval, if the developer can prove it was "barred or prevented . . . from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that [it] applied promptly for and diligently pursued these approvals."
On December 26, 1989, plaintiff's predecessor in title obtained conditional preliminary major subdivision approval for twenty-two residential building lots on a forty-three acre tract in Knowlton Township. The approved subdivision plan also included a nine acre lot for open space and water detention purposes.
When this approval was obtained, the property was zoned for single family homes on lots with a minimum size of one acre. In 1992, the Township adopted an amended zoning ordinance, under which plaintiff's property was placed in a Farmland Preservation Zone that requires a minimum of five acres for a residential building lot. However, under N.J.S.A. 40:55D-49(a), plaintiff's property was exempted from this zoning change for a three-year period following preliminary subdivision approval, and under the Permit Extension Act, N.J.S.A. 40:55D-130 to 136, this exemption was extended for an additional four years to December 31, 1996, N.J.S.A. 40:55D-133(a).
Near the end of this extension, plaintiff applied for final subdivision approval. On December 30, 1996, the defendant Knowlton Township Planning Board (Board) granted plaintiff final subdivision approval, which was memorialized by a resolution adopted on January 28, 1997. Pursuant to N.J.S.A. 40:55D-52(a), this final subdivision approval granted plaintiff an additional two-year exemption from the 1992 rezoning of its property. This approval was subject to twenty conditions, including "outside agency review," most of which had to be satisfied within ninety days.
However, because plaintiff was unable to satisfy these conditions in a timely manner, it had to apply for an extension of time, which the Board granted by a resolution adopted on June 24, 1997. With respect to the condition that plaintiff obtain required outside agency review, this resolution stated:
[T]he Attorney for the Applicant indicates that they have begun the process of completing those approvals. It was recommended that the letters from those agencies be provided to the Secretary of the Board.
Plaintiff subsequently determined that there was a two-and- a-half foot error in the flood plain line shown on the maps submitted in support of its application for preliminary subdivision approval, which required a reconfiguration of the lots and a modification of the proposed detention basin. The Board concluded that these revisions in the subdivision plan "materially impacted" the preliminary and final major subdivision approvals. Therefore, the Board granted an amended final subdivision approval of a revised subdivision plan, which was memorialized by a resolution adopted on January 27, 1998. The Board also apparently concluded that this amended approval extended plaintiff's exemption from the 1992 rezoning of its property for another year, from January 28, 1999 to January 27, 2000.
On February 15, 2000, plaintiff applied to the Board for a one-year extension of the revised final subdivision approval granted on January 27, 1998. In support of this application, plaintiff claimed that it was entitled to a mandatory extension of time under N.J.S.A. 40:55D-52(d), because delays in obtaining legally required approvals from other governmental entities had prevented it from proceeding with the development. In the alternative, plaintiff requested the Board grant a discretionary one-year extension under N.J.S.A. 40:55D-52(a).
The Board conducted a two day evidentiary hearing, following which it voted to deny plaintiff's application for an extension of time under both N.J.S.A. 40:55D-52(d) and N.J.S.A. 40:55D- 52(a). The Board concluded that plaintiff had failed to show that it had applied for and diligently pursued the required government approvals, or that there had been undue delay by any governmental entity in reviewing plaintiff's applications for those approvals. The Board also concluded that plaintiff had failed to show that the alleged delay in receipt of the required governmental approvals had prevented it from proceeding with the subdivision prior to the January 27, 2000 deadline. Consequently, the Board ruled that plaintiff had failed to demonstrate its entitlement to an extension of time under N.J.S.A. 40:55D-52(d).
In addition, the Board found that plaintiff had not "duly recorded the plat" for its proposed subdivision, which is a precondition of seeking a discretionary extension under N.J.S.A. 40:55D-52(a). The Board also indicated that even if plaintiff had satisfied this precondition, it still would not have been granted a discretionary extension of time because plaintiff's proposed development was inconsistent with the Township's current master plan and zoning. Moreover, the Board noted that "[i]n light of [plaintiff's] difficulty in obtaining financing, the exhaustion of [its] financial resources and [its] history of ...